Full opinion text
MEMORANDUM OPINION ROBERT E. PAYNE, Senior District Judge: This case challenges the constitutionality of twelve Virginia House of Delegates districts (the “Challenged Districts”) as racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The case is ripe for decision following a four-day bench trial at which the parties presented oral testimony and offered numerous exhibits. Our findings of fact are based on our assessment of the record and are grounded in our determinations respecting the credibility of the witnesses. Our conclusions of law address the several legal issues presented by the parties. In particular, we have determined that it is the burden of the Plaintiffs to prove by a preponderance of the evidence that race was the predominate factor motivating the decision to place a significant number of voters within or without a particular district in that, as to each of those districts, Virginia’s General Assembly subordinated race-neutral districting principles to racial considerations when forming the district.- Based on this legal standard and the record, we have concluded that, except as to House District 75, the Plaintiffs have not carried that burden and that race was not shown to have been the predominant factor in the creation of eleven of the twelve Challenged Districts. We are satisfied that race was the predominant factor in the creation of House District 75. However, we have also concluded that, in using race, the General Assembly was pursuing a compelling state interest, namely, actual compliance with federal antidiscrimination law, and that, in the process, the General Assembly used race in a manner narrowly tailored to achieve that interest. In the Memorandum Opinion that follows, the Court will review the procedural background of the case in Section I; provide a brief overview of the law relating to racial gerrymandering claims in Section II; and set out its findings on the factual background of the case in Section III. In Section IV, the Court will articulate its understanding of the relevant legal framework for evaluating racial gerrymandering (or “racial sorting”) claims, set out additional factual findings of general applicability, and conduct a district-by-district analysis with district-specific factual findings and district-specific application of the relevant legal framework. I. PROCEDURAL BACKGROUND In the wake of the 2010 census, the Virginia General Assembly sought to redraw the legislative districts for the Virginia House of Delegates (“House”) and the Senate of Virginia (“Senate”). The task of redistricting is one that carries great political and legal consequence. In a representative democracy, such legislation shapes more than the abstract boundaries of electoral districts; it shapes the character, conduct, and culture of the representatives themselves. On its face, the legislation recites a singularly tedious list of precincts and counties. But in application, few pieces of legislation have a more profound impact on the function of government and whether it acts as “the faithful echo of the voices of the people.” Justice James Wilson, The Works of the Honourable James Wilson, L.L.D. 433 (Bird Wilson, ed., The Lorenzo Press 1804). The political significance of redistricting is matched only by its legal complexity. Those shepherding redistricting legislation must traverse a precarious path between constitutional and statutory demands that are often in tension with one another and provide opaque interpretive standards rather than clear rules. As to the 2011 redistricting, Delegate Chris Jones led this effort in the House. Delegate Jones played an instrumental role in the 2001 redistricting process and drew upon that experience to lead the 2011 redistricting efforts. Pis.’ Ex. 35 at 46:18-48:21; Trial Tr. 272:24-274:7 (Jones). Because Virginia was a covered jurisdiction under Section 4 of the Voting Rights Act of 1965 (“VRA”) at the time the redistricting legislation was prepared, and was therefore subject to the requirements of Section 5 of the VRA, (Docket No. 83), it was necessary to ensure that the plan did not result in a “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). In an attempt to comply with this statutory command, Delegate Jones crafted a plan containing twelve majority-minority House Districts (“HDs” or “Districts”). These are the Challenged Districts: HDs 63, 69, 70, 71, 74, 75, 77, 80, 89, 90, 92, and 95. On December 22, 2014, Plaintiffs filed a Complaint against the Virginia State Board of Elections, the Virginia Department of Elections, and various members thereof in- their official capacities (“Defendants”), alleging that the Challenged Districts were racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment and seeking declaratory and injunctive relief prohibiting Defendants from implementing or conducting further elections based on the Challenged Districts. (Docket No. l.) The Plaintiffs are twelve citizens of the United States and the Commonwealth of Virginia who are lawfully registered voters in the Commonwealth and each of whom resides in one of the twelve Challenged Districts. (Docket No. 83.) The Plaintiffs requested that the case be heard by a three-judge district court pursuant to 28 U.S.C. § 2284(a) on the grounds that the action “challeng[es] the constitutionality of the apportionment of ... [a] statewide legislative body.” (Docket No. 1.) That request was granted by the Chief Judge of the United States Court of Appeals for the Fourth Circuit. (Docket No 11.) The Virginia House of Delegates and the Virginia House of Delegates Speaker William Howell (“Intervenors”) moved to intervene in the case. (Docket No. 12.) That motion was granted. (Docket No. 26.) A four-day bench trial began on July 7, 2015. (Docket Nos. 99-102.) Because the Defendants are “administrative agencies that implement elections” but “do not draw the districts,” Trial Tr. 12:14-25 (Defendants), the Defendants allowed the Inter-venors to carry the burden of litigation but joined the Intervenors’ arguments at the close of the ease, id. at 830:2-3. For ease of reference, the Defendants and Interve-nors will be referred to as the Intervenors. II. BASIC OVERVIEW OF RACIAL GERRYMANDERING CLAIMS Before proceeding to the facts of the case and the substance of this litigation, a brief overview of the constitutional and statutory requirements pertinent to racial gerrymandering claims is appropriate. As noted above, these commands often cut counter to each other and require legislators to balance competing considerations. Tracing their evolution is therefore useful as a predicate for the decision that follows. The Supreme Court has long observed that the right to vote is “fundamental” because it is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In Reynolds v. Sims, the Court recognized that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise” and held that the malapportionment of state legislative bodies in derogation of the “one person, one vote” principle violates the Equal Protection Clause. 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Because legislation affecting the right to vote “strike[s] at the heart of representative government,” id., the “Constitution leaves no room for classification of people in a way that Unnecessarily abridges this right,” id. at 560, 84 S.Ct. 1362, and grants every citizen “an inálienable right to full and effective participation in the political processes of his State’s legislative bodies,” id. at. 564,' 84 S.Ct. 1362. The decision in Reynolds only required state legislatures to comply with the equal population standard, but its language would come to stand for something more. The next year, in Fortson v. Dorsey, the Court suggested that a “constituency apportionment scheme” may not “comport with the dictates of the Equal Protection Clause” if it “would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” 379 U.S. 433, 438-39, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). With Fortson, the Supreme Court first recognized that redistricting legislation may offend Equal Protection Clause principles when it distinguishes between-voters on a racial basis.- Over time, the Supreme Court has come to recognize two types of racial gerrymandering claims under the Fourteenth Amendment: (1) claims of racial vote dilution, where the redistricting legislation- is “conceived or operated as [a] purposeful devio[e] to further racial discrimination by minimizing, canceling out or diluting the voting strength of racial elements in the voting population,” Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (internal quotation marks omitted); and (2) claims of racial sorting, where the redistricting legislation, “though race neutral on its face, rationally cannot be understood as anything other' than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification,” Shaw v. Reno (Shaw I), 509 U.S. 630, 649, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). A. Racial Vote Dilution and the Fourteenth Amendment The Supreme Court first struck down a districting scheme for unconstitutional racial vote dilution in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). There, the Court stated: The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to eléct legislators of their choice. 412 U.S. at 765-66, 93 S.Ct. 2332. At the time, it was unclear whether such a claim required a showing of discriminatory intent or could-be maintained based solely on discriminatory effect. Several years later, in City of Mobile v. Bolden, the Court suggested in a plurality opinion that both discriminatory intent -and discriminatory effect were required to establish a claim of unconstitutional racial vote dilution. '446 U.S. 55, 66, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). That holding was reaffirmed by a majority of the Court in Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Writing for the majority, Justice White confirmed that “a showing of discriminatory intent has long been required in all types of equal protection cases charging racial discrimination.”. Rogers, 458 U.S. at 6Í7,102 S.Ct. 3272. Therefore, in a constitutional racial vote dilution ease, the plaintiff must show that the State has placed a burden upon the right to vote by intentionally establishing or maintaining devices or procedures that cause minority citizens to have less opportunity than other citizens to participate in the political processes and to elect legislators of their choice. This dilutes the minority voter’s ability to exercise the “full and effective” right to vote. B. Racial Sorting and the Fourteenth Amendment The other strand of “racial gerrymandering” — a racial sorting claim such as the one presented in this case1 — is “analytically distinct” from a vote dilution claim. Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). “Whereas a vote dilution claim alleges that the State has enacted a .".. purposeful device ‘to minimize or cancel out the voting potential of racial or ethnic minorities,’ ... the essence of [a racial sorting claim] is that the State has used race as a basis for separating voters into districts.” Id. (internal citations omitted). In Shaw I, the Supreme Court faced two patently bizarre legislative districts. 509 U.S. at 635, 113 S.Ct. 2816. One resembled a “Rorshach ink-blot test” or a “bug splattered on a windshield,” while the other was “even more unusually shaped”: [The district] is approximately 160 miles long and, for much of its length, no wider than the 1-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods. Northbound and southbound drivers on 1-85 sometimes find themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that “if you drove down the interstate with both car doors open, you’d kill most of the people in the district.” Id. at 635-36,113 S.Ct. 2816 (citations and some internal quotation marks omitted). Although the text of the legislation was facially neutral, the Court found that “it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional dis-tricting principles.” Id. at 642, 113 S.Ct. 2816. For that reason, rather than requiring the plaintiffs to present evidence of discriminatory purpose and discriminatory effect, the Supreme Court treated the legislation as tantamount to a suspect facial classification and employed strict scrutiny. Id. at 642-43, 113 S.Ct. 2816 (“Express racial classifications are immediately suspect because, absent searching judicial inquiry, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics____ Accordingly, we have held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest. These principles apply not only to legislation that contains explicit racial distinctions, but also to those ‘rare’ statutes that, although race neutral, are, on their face, ‘unexplainable on grounds other than race.’ ”) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). In order to prove a racial sorting claim, a plaintiff must show that the legislature “subordinated” traditional race-neutral districting principles in crafting the district’s boundaries: The plaintiffs burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral district-ing principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Miller, 515 U.S. at 916, 115 S.Ct. 2475 (emphasis added). This threshold, standard is “a demanding one.” Indeed, the Plaintiffs must overcome a presumption that the legislature acted correctly and in good faith. Id. Thus, the plaintiff “must show that the State has relied on race in substantial disregard of customary and traditional districting practices.” Id. at 928, 115 S.Ct. 2475 (O’Connor, J., concurring). If the plaintiff makes -the requisite showing, the State must demonstrate that the redistricting legislation is narrowly tailored to advance a compelling state interest. In redistricting cases where the State claims a compelling interest in compliance with the VRA, the legislature must show that it had a “strong basis in evidence” to support its use of race-based districting. Alabama Legislative Black Camus v. Alabama, — U.S.-, 135 S.Ct. 1257, 1274, 191 L.Ed.2d 314 (2015). In other words, the legislature must have “good reasons to believe” that its use of racial classifications was “required” by the VRA, “even if a court does not find that the actions were necessary for statutory compliance” after the fact. Id. at 1274. . C. The Voting Rights Act In addition to these constitutional imperatives, redistricting legislation must also comply with the VRA. “The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting[.]” South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) abrogated by Shelby Cnty., Ala. v. Holder, — U.S.-, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Enacted pursuant to Congress’ enforcement powers under the Fifteenth Amendment, see Shelby Cnty., 133 S.Ct. at 2619-21, the VRA prohibits states from adopting plans that would result in vote.dilution under Section 2 or — in covered jurisdictions — retrogression under Section 5. Section 2 of the VRA prohibits'the imposition of any electoral practice or procedure that “results in á denial or abridgement of the right of any citizen ... to vote on account of race or color.,” 52 U.S.C. § 10301(a). A § 2 violation occurs when, based on the totality of circumstances, the political process results in minority “members hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). By adopting the “discriminatory effect” language from Reges-ter and omitting any requirement to prove discriminatory intent as required by Lodge, Congre'ss created a statutory “results test” that could be brought by plaintiffs who might be otherwise unable to bring a claim of racial vote dilution under the Equal Protection Clause. See Shaw I, 509 U.S. at 641, 113 S.Ct. 2816 (“In 1982, [Congress] amended § 2 of the Voting Rights Act to prohibit legislation that results in the dilution of a minority group’s voting strength, regardless of the legislature’s intent.”). In order to prove a § 2 violation, a plaintiff must satisfy three prerequisites: compactness, political cohesiveness, and bloc voting. “First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Thornburg v. dingles, 478 U.S. 30, 50, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). “Second, the minority group must be able to show that it is politically cohesive.” Id. at 51, 106 S.Ct. 2752. “Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it—in the absence of special circumstances, such as the minority candidate running unopposed—usually to defeat the minority’s preferred candidate.” Id. These final two factors are often referred, to collectively as “racial polarization.” Once these prerequisites have been satisfied, the court evaluates the plaintiff’s evidence based on the totality of the circumstances. The totality of circumstances must be considered with a focus on whether the minority group in question was denied “equal political opportunity.” Johnson v. De Grandy, 512 U.S. 997, 1014, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). With respect to redistricting legislation, § 2 establishes a. “natural floor” based' on the State’s demographics for the number of districts wherein members of a minority group must maintain an “equal political opportunity” to “elect representatives of their choice.” Where a minority group, is sufficiently large and geographically compact to constitute a numerical majority in a hypothetical district, § 2 requires the creation of a district wherein members of that group maintain the equal ability to elect representatives of their choice'. See Bartlett v. Strickland, 556 U.S. 1,13,129 S.Ct. 1231,173 L.Ed.2d 173 (2009). Proving this hypothetical requires the plaintiffs to present an alternative redistricting plan. See Reno v. Bossier Parish Sch. Bd„ 520 U.S. 471, 480, 117 S.Ct. 1491,137 L.Ed.2d 730 (1997) (“Because the very concept of vote dilution implies—and, indéed, necessitates—the existence of an ‘undiluted’ practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark ‘undiluted’ voting practice.”). Section 5 of the VRA, on the other hand, forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, “to elect their preferred candidates of choice.” Shelby County, 133 S.Ct. at 2621. Sections 2 and 5 “differ in structure, purpose, and application. Section 5 applies only in certain jurisdictions specified by Congress and ‘only to proposed changes- in voting procedures.’” Holder v. Hall,-512 U.S. 874, 883,114 S.Ct. 2581, 129 .L;Ed.2d 687 (1994) (quoting Beer, 425 U.S. at 138, 96 S.Ct. 1357) (emphasis added). ■ Section 5 was enacted as “a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.” , Beer, 425 U.S. at 140, 96 S.Ct. 1357. By requiring that proposed changes be approved in advance, Congress' sought “ ‘to shift the advantage of time and inertia from the perpetrators of the evil to its victim,’ by ‘freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.’” Id. (quoting ELR.Rep. No. 94-196, pp. 57-58 (1970)). The purpose of this approach was to ensure that “no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Holder, 512 U.S. at 883,114 S.Ct. 2581. “Retrogression, by definition, requires a comparison of a jurisdiction’s new voting plan with its existing plan. It also necessarily implies that the jurisdiction’s existing plan is the benchmark against which ■ the ‘effect’ of voting changes is measured.” Reno, 520 U.S. at 478, 117 S.Ct. 1491. Unlike the “natural floor” of § 2 ensuring equal ability to elect, the retrogression standard of § 5 creates a “relative floor” based upon the existing benchmark plan. Under. § 5, the State must -ensure that the new plan does not “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise” by diminishing the'ability of minority voters to elect their preferred candidates of choice as compared to the Stated existing plan. . Therein lies the rub.' To comply with federal statutory command (the VRA), the State must consider arid account for race in‘drawing legislative districts in order to craft a compliant plan: However, to avoid violating the federal constitution, the State must not subordinate traditional, neutral principles to racial considerations in drawing district boundaries. And, at the same time, the State must also comply with the “one person, one vote” constitutional requirement as specified in -Reynolds v. Sims. That, of course, is not a traditional- redistricting principle to be weighed as part of the predominance inquiry, as Alabama makes clear. But it is a federal constitutional requirement that, of necessity, is central to the redistricting process and that is highly instrumental in the drawing of district boundaries. ' It is within the context of this legal framework that the Virginia General Assembly sought to design and enact a compliant redistricting plan. And these principles are central to the resolution of this case. Before proceeding to the facts of the case, the Court feels it necessary to pause and recognize that Delegate Jones, members of the redistricting committee, and other legislators involved in the crafting and amendment of HB 5005 did not have the benefit of either the Supreme Court’s guidance in the recent Alabama decision or the guidance provided in the opinion entered here today. Based on the evidence and'testimony provided in the record, the Court believes that, all of the legislators involved proceeded in a good faith attempt to comply with all relevant constitutional and statutory demands, as they understood them at the time.. III. Factual Background A. The 2011 Redistricting Process ' The first steps in the redistricting process began well before the United States Census Bureau released its population and demographic ' data. Trial Tr. 273:11 (Jones). On August 23, 2010, Delegate Mark Cole announced that the redistricting subcommittee of the House of Delegates Committee on Privileges and Elections had scheduled a series of six public hearings throughout the Commonwealth to solicit input into the House redistricting process.' (Docket No. 85.) These public hearings were held between September 8, 2010 and December 17, 2010. Id,.; Trial Tr. 273:14-19 (Jones). Following these hearings, Governor McDonnell signed Executive Order 31 on January 10, 2011, creating the “Independent Bipartisan Advisory Redistricting Commission” (“Governor’s Commission”) to develop plan proposals, review public input, and analyze recommendations from other stakeholders in the voting public. (Docket No. 85.) Redistricting began in earnest in February 20Í1 when the 2010 census data was released via Public Law 94-171. Trial Tr. 276:4-21 (Jones). On March 25, 2011, the House Committee on Privileges and Elections adopted a resolution setting out the criteria that the committee would follow in reviewing redistricting plans. Pis.’ Ex. 48 at 6. The House Committee established six criteria, which were as follows: I. Population Equality: The population of legislative districts shall be determined solely according to the enumeration established by the 2010 federal census. The population of each district shall be as nearly equal to the population of every other district as practicable. Population deviations in House of Delegates districts should be within plus-or-minus one percent. II. Voting Rights Act: Districts shall be drawn in accordance with the laws of the United States and the Commonwealth of Virginia including compliance with protections against the unwarranted retrogression or dilution of racial or ethnic minority voting strength. Nothing in these guidelines shall be construed to require or permit any districting policy or action that is contrary to the United States Constitution or the Voting Rights Act of 1965. III. Contiguity and Compactness: Districts shall be comprised of contiguous territory including adjoining insular territory. Contiguity by water is sufficient. Districts shall be contiguous and compact in accordance with the Constitution of Virginia as interpreted by the Virginia Supreme Court in the cases of Jamerson v. Womack, 244 Va. 506 [423 S.E.2d 180] (1992) and Wilkins v. West, 264 Va. 447 [571 S.E.2d 100] (2002). IV. Single-Member Districts: All districts shall be single-member districts. V. Communities of Interest: Districts shall be based on legislative consideration of the varied factors that can create or contribute to communities of interest. These factors may include, among others, economic factors, social factors, cultural factors, geographic factors, governmental jurisdictions and service delivery areas, political beliefs, voting trends, and incumbency considerations .... Local government jurisdiction and precinct lines may reflect communities of interest to be balanced, but they are entitled to no greater weight as a matter of state policy than other identifiable communities of interest. VI. Priority: All of the foregoing criteria shall be considered in the dis-tricting process, but population , equality among districts and compliance with federal and state constitutional requirements and the Voting Rights Act of 1965 shall be given priority in the event of conflict among the criteria. Where the application of any of the foregoing criteria may cause a violation of applicable federal or state law, there may be such deviation from the criteria as is necessary, but no more than is necessary, to avoid such violation. Pis.’ Ex. 16. These criteria were substantially similar to the criteria adopted by the committee in the 2001 redistricting cycle, with two exceptions. Ints.’ Ex. 27. First, the 2001 criteria had permitted a population deviation of “plus-or-minus two percent,” rather than one percent, which Delegate Jones stated was altered to better “approximate the one-person-one-vote [standard] in the Virginia constitution.” Trial Tr. 275:10-19 (Jones). Second, the 2001 criteria were updated to include a citation to the decision of the Supreme Court of Virginia in Wilkins v. West as part of the “Contiguity and Compactness” criterion. Id. at 275:13-15. B. The 55% Black Voting Age Population Floor At the time the redistricting process began, the twelve Challenged Districts had black voting-age populations (“BVAP”) ranging from 46.3% to 62.7%. Three of the districts had BVAPs below 55%. All others were above 55%. Several legislators believed that the twelve “ability-to-elect” districts found in the 2001 redistricting plan (or “Benchmark Plan”) needed to contain a BVAP of at least 55% in the 2011 redistricting plan to avoid “unwarranted retrogression” under Section 5 of the VRA and to comply with Criterion II of their own redistricting rules. The existence of a fixed racial threshold can have profound consequences for the Court’s predominance and narrow tailoring inquiries in a racial sorting claim, so a substantial amount of time at trial was devoted to questions related to this factual topic. However, the most important question — whether such a figure was used in drawing the Challenged Districts — was not disputed. Rather, the parties disputed whether the 55% BVAP was an aspiration or a target or a rule. In the end, it is not relevant. whether the 55% BVAP was a rule or a target because all the parties agree — and the Court finds — that the 55% BVAP figure was used in structuring the districts -and in assessing whether the redistricting plan satisfied constitutional standards and the VRA, and whether the plan would be precleared by the Department of Justice (“DOJ”). At trial, two additional questions regarding the 55% figure dominated the discussion. First, whether the BVAP figure included or excluded those who identified themselves in the census process as ethnically Hispanic and racially black. And second, what'the source of the 55% BVAP figure was. • The parties hotly debated whether the appropriate measure of BVAP used in the redistricting process did or did not include individuals who identified as racially black and ethnically Hispanic in the census data. The supposed importance of this dispute was that, if black Hispanics were excluded from the black population count, three of the Enacted Plan’s majority-minority districts would actually contain a BVAP percentage just shy of 55%. Trial Tr. 280:24-281:10 (Jones); 862:4-7 - (Intervenors). That, according to Intervenors, would support a finding that there was not a 55% BVAP floor in deciding on the twelve Challenged Districts. The ‘record shows that delegates attempting to comply with the 55% BVAP floor submitted their proposed changes using data that included black Hispanics in the BVAP count. See Pis.’ Ex. 33 at 46; Trial Tr. 40:10-25 (McClellan); Trial Tr. 68:23-69:2 (Dance); Ints.’ Pre-Trial Brief at 8. Although Delegate Jones claimed to personally believe that the DOJ would use a BVAP figure excluding black Hispanics, Trial Tr. 286:8-16 (Jones), this was not a distinction that he discussed with any other delegates, id. at 427:1-428:16 & 490:2-4, and he repeatedly asserted on the House floor that all majority-minority districts in the proposed legislation had a BVAP of 55% or higher, Pis.’ Ex. 35 at 42, 66, 108. Moreover, Delegate Jones “assumed” that Virginia, in its preclearance submissions to the DOJ; would represent that all 12 majority-minority districts contained at least 55% BVAP. Trial Tr. 447:6-8 (Jones). This turned out to be the case. Pis.’ Ex. 48 at 11 (“All 12 black majority districts were maintained with greater than 55% black YAP — a range of'-55.2% to 60.7%.”). At trial, Intervenors relied on a spreadsheet prepared by the Division of Legislative Services (“DLS”) in an attempt to show that including Hispanics in the BVAP count would be erroneous. The spreadsheet contains rows of data by district and, in each column, contains metrics such as total population, population by race, racial population by percentage, population by ethnicity, and ethnic population by percentage. Pis.’ Ex. 60 at 13. After adding the racial and ethnic population totals column by column, the Intervenors dramatically revealed that the number exceeded that of the district’s total population. Trial Tr. 282:10-286:7 (Jones). But this exercise reflects an error on the part of the Intervenors, not DLS. Because ethnicity measures a different variable than race, the racial and ethnic data are not meant to be added in the first place. If one removes the ethnicity column from the count (on the assumption that Hispanic individuals of any race are already counted in their respective racial columns), then the total population figure is corrected. That does not, however, imply that Hispanics who are racially black should be excluded from the black population count because' to do so would undercownt the number of black individuals in the BVAP percentage. The record shows that the ethnic data provided by the census only has redistricting implications in states that may heed to craft majority-Hispanic districts or majority-“black-plus-Hispanic” (or “coalition”) districts. In' states such as Virginia, on the other hand, black Hispanics would count towards the total black population of a district for retrogression purposes. Id. at 747:14-749:12 & 752:17-754:17 (Ansola-behere). That appears to be consistent with the DOJ’s (admittedly confusing) guidance on this question: “If there are significant'numbers of-responses which report Latino and one or more minority races (for example, Latinos who list their race as Black/African American), those responses will be allocated alternatively to the Latino category and the minority race category.” Pis.’ Ex. 9 at 4-5 (76 Fed.Reg. Vol. 27 (Feb. 9, 2011) at 7472-7473). This “alternating” approach presumably applies to situations where the district would be majority-“black-pIus-Hispanic,” in which case counting black Hispanic individuals as either black or Hispanic in alternating fashion would avoid counting those individuals twice in the same district. Trial Tr. 757:1-12 (Ansolabehere). Thus, the Court finds that the proper count includes black Hispanics within the BVAP percentage of each majority-minority district. This method of counting results in a BVAP above 55% for all twelve majority-minority districts, ranging from 55.2% to 60.7%. Regardless, this debate — like the first— generated more heat than light. The actual differences in BVAP percentages were minute, and both parties eventually agreed that the distinction was not one of great legal significance. See id. at 816:5-9 (Plaintiffs) (“The distinction between how [these are] calculate^] ... is simply irrelevant, and it doesn’t matter what we call it. ' They used a racial target, and whether that was 53 or 54 or 55 or 56, whether, you measure it this way or that way, it just doesn’t matter.”) and id. at 862:8-11 (In-tervenors) (“Do I believe the difference between these two numbers is in reality meaningful in actual reality? No, it isn’t a significant difference one way or the other, let’s be candid.”). Unlike the first two questions, the answer to the third question — i.e., the source of the 55% rule — can carry great legal significance. Testimony on this question is a muddle. Delegate Dance testified that her understanding came from Delegate Jones and that the 55% figure was necessary in order to achieve DOJ approval, id. at 70:18-23 (Dance), but her speech from the House floor appears to represent it as her own understanding, see Pis.’ Ex. 33 at 45 (“[W]e need 55 percent at least voting African-Americans[.]”). Delegate McClellan understood the committee’s adopted criteria to require “each of the majority-minority districts .... to have a black voting-age population of at least 55 percent',” Trial Tr. 33:1 — 4 (McClellan), and testified that she came to this understanding “[t]hrough conversations with' Delegate Jones and with Legislative Services,” id. at 33:6-8. Delegate Tyler testified that her understanding came from Delegate Spruill, (Docket No. 90-2, Ex. B at" 57:5-8), and Delegate Armstrong testified that, “as far as' [he] could tell, the number was almost pulled out of thin air,” Trial Tr. 98:1-2 (Armstrong). Delegate Jones initially testified that the figure was drawn from the public hearings held with the community..- See id. at 424:1-4 (Jones) (55%. BVAP “is what the community had indicated to us that they felt would allow them to elect the candidate of their choice,”); id. at .429:8-9 (“That was the testimony that we heard during the public hearings.”). Although this testimony is consistent with his prior statements from the House floor, see Pis.’ Ex. 35 at 72, the trial record does not support it. At trial, Delegate Jones admitted that he had not read the transcripts from every hearing and could not recall a single instance of a member of the public requesting a 55% BVAP level. Trial Tr. 442:18-443:9 (Jones). Moreover, most of these hearings were transcribed and submitted as evidence. A review of the public hearing transcripts from the Fall of 2010 fails to’ reveal any mention of the 55% figure. See Pis.’ Exs. 3-6, Ints.’ Ex. I. Delegate Jones also claimed that .the 55% .figure came from “Delegate Dance, and Delegate Tyler, Delegate Spruill, and one or two othe[r] .... African-American members of the House.” Trial Tr. 431:4-7 (Jones). This was then narrowed to Delegates Dance, Tyler, and Spruill. Id. at 490:5-13. After further questioning, the 55% figure appears to have come from feedback that Delegate Spruill received from various groups in Virginia and from concerns that Delegate Tyler would be unable to hold her seat in [¶] 75 with a lower BVAP percentage. Id. at 494: 6-495:1. In discussing Delegate McClellan’s seat, by contrast, Delegate Jones indicated that, while “no one” was comfortable leaving the BVAP percentage in [¶] 71 at 46%, “they felt that we needed to have a performing majority-minority district, and from the members that I spoke to, they felt that it needed to be north of 50 percent minimum.” Id. at 293:6-16 (emphasis added). Based on the foregoing testimony, and the evidence set forth below, the Court finds — based on the record presented— that the 55% BVAP floor was based largely on concerns pertaining to the re-election of Delegate Tyler in [¶] 75 and on feedback received from Delegate Spruill and, to a lesser extent, Delegates Dance and Tyler. That figure was then applied across the board to all twelve of the Challenged Districts. C. The Passage and Enactment of HB 5005 During the redistricting process, the General Assembly initially considered three plans: HB 5001, HB 5002, and HB 5003. HB 5001 was the plan designed and proposed by Delegate Jones. HB 5002 and HB 5003, on the other hand, were designed by university students and proposed by other members of the House of Delegates. Id. at 376:24-378:9. According to Delegate Jones, HB 5002 paired somewhere between 40 and 48 incumbents, contained six majority-minority districts, and had over a 9% population deviation. Id. at 378:10-379:4. HB 5003, on the other hand, paired somewhere between 32-34 incumbents, contained nine or ten majority-minority districts, and also did not meet the population deviation criteria. Id. at 379:8-17. The Governor’s Commission also designed two plans that contained 13 and 14 majority-minority districts, respectively; however, those plans were never formally introduced or proposed. Id. at 379:18-380:11. Once the House had coalesced around HB 5001 and the plan was married with the Senate’s redistricting plan, the bill was ready for passage and enactment. On April 12, 2011, the Virginia General Assembly passed HB 5001. (Docket No. 83.) Based largely upon objections to the Senate plan, then-Virginia Governor Robert McDonnell vetoed HB 5001 three days later. Ints.’ Ex. 10. After relatively minor revisions to the House plan and more substantial revisions to the Senate plan, Pis.’ Ex. 48 at 10, the legislature passed HB 5005, which was signed by the Governor and enacted into law on April 29, 2011, (Docket No. 83). To comply with its obligations under the VRA, the Commonwealth then submitted the Enacted Plan (or “the Plan”) to the DOJ for preclearance. Id. The DOJ pre-cleared the Plan on June 17, 2011, (Docket No. 83), and the first election under the new districts was held on November 8, 2011, (Docket No. 85). IV. ANALYSIS The questions raised in a racial sorting claim are deceptive in their simplicity but profound in their implications. Resting at the crossroads of race, politics, and the constitutional limits of federal power, the claim raises vital questions about how we identify as citizens and how we project that identity in the halls of the legislature. The Supreme Court has crafted an interpretive standard for navigating this field: the legislature must not allow racial considerations to predominate over (i.e., to subordinate) traditional redistriet-ing criteria. If this results from attempted compliance with the VRA, the State must show a “strong basis in evidence” that its use of race was necessary to comply with a constitutional reading of the statute. What this standard provides in conceptual grace, however, it lacks in practical guidance. For legislators, it does little to signal when it may be constitutionally permissible to cut through a precinct or move a boundary line to alter the demographic composition of a district for purposes of complying with similarly mandatory federal law. For litigators, it provides an enticingly vague standard and invites litigation that can drive up the cost of conducting and defending the State’s redistricting endeavor. See Abrams v. Johnson, 521 U.S. 74, 118, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (Stevens, J., dissenting) (“Any redistricting plan will generate potentially injured plaintiffs, ... [a]nd judges (unable to refer, say, to intent, dilution, shape, or some other limiting principle) will find it difficult to dismiss those claims[.']”).' And for courts, it provides an uncomfortable amount of discretion in a field that the Supreme Court has repeatedly admonished “represents a serious intrusion on the most vital of local functions.” Miller, 515 U.S. at 915,115 S.Ct. 2475. By asking courts attempting to identify predominance to engage in a searching factual inquhy and comprehensive balancing before applying strict scrutiny — and to justify strict scrutiny — the test gives the judicial branch the relatively broad power to strike down or uphold legislative districts without much guidance in how to do so, notwithstanding exhortations to exercise “extraordinary caution” to the contrary. Therefore, to sharpen the judicial inquiry, to ensure that the requisite burden is satisfied, and to assess whether redistricting legislation has successfully navigated the narrow passage between constitutional and unconstitutional redistricting, it is appropriate to articulate how the Court understands the predominance and strict scrutiny inquiries are to proceed as a matter of law. The statewide and district-by-district evidence then ■ will be assessed within that framework. A. The Racial Sorting Framework The essence of the racial sorting analysis is quite easy to articulate and comprehend. First, • courts examine whether racial considerations predominated over — or “subordinated” — traditional redistricting criteria. If a court so finds, . then the court applies strict scrutiny. Second, the court examines whether the legislature had a strong basis in evidence for believing federal law required its use of race, assuming this is the basis upon which the State seeks to justify its decision. But, as this case demonstrates, the devil is in the details. The parties actually have proposed conflicting rules regarding the “subordination” test. And each believes that the Supreme Court’s recent Alabama decision reinforces its position. But both cannot be right, and we think that neither is. ... The Plaintiffs’ case and our colleague’s dissent revolve chiefly around the evidence that legislators employed a 55% BVAP floor when crafting the Challenged Districts. According to Plaintiffs’ theory, “race predominates if it is the most important criterion.” Pis.’, Post-Trial Brief at 4 (Docket No. 105). In other words, subordination “does not require open conflict with ‘traditional’ districting criteria.” Id. at 5. Thus, the Plaintiffs, like the dissent, propose a per se rule: the drafters’ use of the 55% BVAP floor in districting is verboten and automatically satisfies Miller’s predominance standard. This, the Plaintiffs argue, is the central thrust of the Alabama case: This case boils -down'to a very simple proposition: May Virginia’s General Assembly utilize a fixed numerical racial threshold in establishing district lines____ The answer to this question has been addressed and definitively settled by the United States Supreme Court in its recent Alabama decision which unambiguously condemned- the use of racial thresholds in. redistricting[.] Trial Tr. 811:1-10 (Plaintiffs). Despite its tempting simplicity and visceral appeal, the Court must reject this proposal. Although the Alabama decision condemned the use of unwritten racial thresholds, it did not establish a per se predominance rule. In Alabama, the Court accepted the lower' court’s finding that legislators had employed BVAP percentage floors in the challenged districts. See Alabama, 135 S.Ct. at 1271 (“The legislators in charge of creating the redistricting plan believed, and told their technical adviser, that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district, insofar as feasible.”). If the use of those thresholds constituted predominance per se, then there would have been little reason for the Supreme Court to have remanded the case to the district court to determine whether race predominated. Id. at 1272, Rather, the: Court' pointed out that “[tjhere [was] considerable evidence that this goal had a direct and significant impact on the drawing of at least some of [the' district’s] boundaries.” Id. at 1271 (emphasis added). “That [the State] expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote) provides evidence that race motivated the drawing of particular lines in multiple districts in the State.” Id. at 1267 (emphasis added). ■ The Alabama case could not be clearer that use of racial BVAP floors constitutes evidence — albeit significant evidence — of predominance. But, we do not read Alabama to hold that use of a BVAP floor satisfies the Plaintiffs’ predominance burden merely because the floor Was prioritized “above all other districting criteria” in “importance.” Rather, the' significance of the racial floor is its impact on the creation of the district; This demands “actual conflict between traditional redistricting criteria and race that leads to the subordination of the former, rather than a merely hypothetical conflict that per force results in the conclusion that-the traditional criteria have been subordinated to race.” Page v. Virginia State Bd.' of Elections, No. 3Í80V678, 2015 WL 3604029, at *27 (E.D.Va.2015) (Payne, J., dissenting). To understand why this is so, one must remember the origin of — and the rationale for — the Shaw claim. The district boundaries in Shaw were so, outlandish that— despite any express textual-classification by race in the statute — “it rationally [could] be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles.” Shaw I, 509 U.S. at 642, 113 S.Ct. 2816. In response, the Court treated the legislation as though it had employed a facial classification and subjected the legislation to. strict scrutiny rather than requiring the plaintiffs to prove both discriminatory purpose and discriminatory effect. In Shaw, the Court compared the districts to racial “balkanization” and “political apartheid” and cautioned that such districts threaten expressive harm — i.e., the stigmatization of individuals “by reason of their membership in a racial group” and the incitement of “racial hostility” — as well as representative harm — ie.,' the threat that elected officials would begin to “believe that their primary obligation is to represent only the members of that group, rather .than their constituency as whole.” Id. at 657, 643, 648,113 S.Ct. 2816. Unlike in its racial and political' vote dilution cases, however, thé Supreme Court did not charge plaintiffs with producing evidence that such discriminatory effects had, in fact, come to pass. See-e.g., Rogers, 458 U.S. at 625-27, 102 S.Ct. 3272 (observing, in racial vote dilution case that “[e]xtensive evidence was cited by the District Court to support its finding that elected officials of Burke. County have been unresponsive and insensitive to the needs of the black community, which- increases the likelihood that the political process was not equally open to blacks”); Davis v. Bandemer, 478 U.S. 109, 131-32, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (observing in political vote dilution case that “[a]n individual or a group of individuals who votes for a losing candidate is usually deemed to bp adequately represented,by the winning candidate and to have as much opportunity to influence that candidate, as other voters in the district” and that the Court “cannot presume in such a situation, without actual proof to the contrary, that the candidate elected will entirely ignore the interests of those voters”) (emphasis added). Such evidence is not necessary in a racial sorting claim because “[ejxpress-racial classifications are immediately suspect” and are subjected to strict' scrutiny. Shaiv I, 509 U.S. at 642, 113 S.Ct. 2816. This is similarly true for the functional equivalents of express racial classifications: statutes “unexplainable on grounds other than race” or statutes that are an “obvious pretext for racial discrimination.*’ See id. at 643-44,113 S.Ct. 2816. • No sooner had the ink dried on the Supreme Court’s opinion in Shaw, than it was faced with a slightly different question. What if the district’s boundaries are not “bizarre” or “irrational,” but still reflect a clear manifestation of racial classification? In Miller, the Court recognized that Shaw represented an “analytically distinct”- claim, 515 U.S. at 911, 115 S.Ct. 2475, but decided that the litigation before it “require[d] [the Court] further to consider the requirements of the proof necessary to sustain this equal protection challenge,” id. at 915, 115 S.Ct. 2475. Rather than abandoning the claim’s' animating principles, the Court altered the threshold showing and clarified that parties bringing a racial sorting claim are “neither confined in their proof to evidence regarding the district’s geometry'and makeup nor required to make a threshold showing óf bizarreness.” - Id. The district challenged in Miller was not as bizarre as those found in Shaw, but, “when'its shape [was] considered in conjunction with its racial and population densities,” ■ it became “exceedingly obvious” that the district employed “narrow land bridges” in “a deliberate attempt to bring black populations into the district.” Id. at 917, 115 S.Ct. 2475, There, the district’s various spindly appendages contained nearly 80% of the district’s total black population. Id. These facially evident deviations from neutral districting conventions could only be explained on the- basis of race. Id. at 918-19, 115 S.Ct. 2475. Thus, districts such as the one found in Miller still raise the specter of expressive or representative harms and still manifest, on the face of the law, the lawmakers’ clear intent to “us[e] race as a basis for separating voters into districts.” Id, at 911, 115 S.Ct. 2475. Moreover, these districts necessarily reflect the kind of “very stereotypical assumptions the Equal Protection Clause forbids;” namely, the “demeaning notion that members of the defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens.” Id. at 914,115 S.Ct. 2475. However, when racial considerations do not entail the compromise of neutral dis-tricting norms, the basis for a racial sorting claim evaporates. Traditional, neutral districting principles reflect certain judgments about voters, but these are the same judgments that animate all geographic — as opposed to proportional — representation systems: that those who live near each other in the same communities, counties, and cities have something in common, something that warrants their representation as a reasonably defined geographical — rather than racial or political — unit. More importantly, holding that otherwise reasonably neutral districts are subject to strict scrutiny because of a merely theoretical or latent conflict between race and traditional districting criteria would unlash the Shaw claim from the mooring of facial classification jurisprudence. If this legal equivalence is forfeited, it is unclear why the “analytically distinct” nature of the claim should not unravel entirely, forcing plaintiffs to prove the expressive or representative harms postulated in Shaw. ■Admittedly, the issue presented in this case is a difficult one. The Supreme Court reserved from the very outset the question of whether the intentional use of a 50% BVÁP threshold was sufficient to sustain a racial sorting claim: It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more,” always gives rise to an equal protection claim. Shaw I, 509 U.S. at 649, 113 S.Ct. 2816. Although the principal opinion in Bush v. Vera attempted to put this question to rest, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (“Strict scrutiny does not apply ... to all intentional creation of majority-minority districts.”) (principal opinion), Justice Kennedy expressed some doubts in his concurring opinion: I join the plurality opinion, but the statements in ,. the opinion that strict scrutiny would not apply to all cases of intentional creation of majority-minority districts require comment. I do not consider these dicta to commit me to any position on the question whether race is predominant whenever a State, in redistricting, foreordains that one race be the majority in a certain number of districts or in á certain part of the State. Id. at 996, 116 S.Ct. 1941 (Kennedy, J., concurring) (internal citation omitted). Based on the Supreme Court’s recent decision in Alabama, the Court now appears to be divided, or at least equivocal, on whether BVAP thresholds alone are sufficient to constitute predominance. Compare Alabama, 135 S.Ct. at 1267 (noting that , the prioritization of “mechanical racial targets above all other districting criteria” only provides evidence that race predominated) with League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399, 517, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito) (arguing that the intentional use of a 50% BVAP threshold necessarily means race predominated). Although the unwritten use of a racial floor by legislators may seem repugnant at first blush, the interpretation of predominance proposed by the Plaintiffs and the dissent has quite serious repercussions. If the use of a BVAP threshold — any BVAP threshold — is sufficient to trigger strict scrutiny in the absence of a' facial manifestation in the lines themselvés through the subordination of traditional redistrieting principles, then the constitutionality of the Voting Rights Act — as applied to redistrieting — would be drawn into question. More fundamentally, the compatibility of the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment’s Enforcement Clause might be drawn into question. The Court does not believe that the Constitution — or that Supreme Court precedent — either requires or permits the Plaintiffs’ view of predominance and, therefore, does not believe that the racial sorting claim extends any further than its original purpose: to strike down those districts that,- on their face, reflect racial classifications. Moreover, the Plaintiffs do not take umbrage at the use of racial targets, so long as those targets serve the ends of preserving minority voters’ ability to elect. Quoting from the Alabama decision during their closing statement, the Plaintiffs observed that, in order to be narrowly tailored, the legislature must ask “to what extent must we preserve existing minority percentages in order to maintain the minorities’ present ability to elect the candidate of its choice.” Trial Tr. 819:23-820:1 (Plaintiffs) (quoting Alabama, 135 S.Ct. at 1274). But, the inquiry into whether the targets are- adequately justified only occurs after finding race predominant. If targets themselves constitute subordination, then it is hard to see how the Plaintiffs have not smuggled one inquiry into the next. This would again threaten the foundations of the VRA by making all its redistrieting applications subject to strict scrutiny and set up a potential conflict between the Fourteenth Amendment’s Equal Protection Clause and the Fifteenth Amendment’s Enforcement Clause. After this journey, we thus arrive back where we started: Miller’s predominance test. In Miller, the Court, described the Plaintiffs’ burden as follows: The plaintiffs burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. 515 U.S. at 916, 115 S.Ct. 2475 (emphasis added). Plaintiffs would prefer we stop reading Miller at this exact punctuation mark.- And, under that formulation, they could plausibly argue that they have proved racial predominance merely upon proof that legislators used' a 55% BVAP floor. But the very next sentence in Miller leads where this Court must, follow: “Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can ‘defeat a claim that a district has been gerrymandered on racial lines.’ ” Id. (quoting Shaw I, 509 U.S. at 647, 113 S.Ct. 2816) (emphasis added). The Co